UNMIK/REG/2001/5

7 February 2001

REGULATION NO. 2001/5

ON PLEDGES

The Special Representative of the Secretary-General,

Pursuant to the authority given to him under United Nations Security Council resolution 1244 (1999) of 10 June 1999,

Taking into account United Nations Interim Administration Mission in Kosovo (UNMIK) Regulation No. 1999/1 of 25 July 1999, as amended, on the Authority of the Interim Administration in Kosovo,

For the purpose of enhancing the economic development of Kosovo and the development of a market-based economy in Kosovo by accommodating credit transactions,

Recognizing that pledges play a vital role in economic development and credit transactions,

Hereby promulgates the following:


Chapter 1
General Provisions

Section 1
Purpose, Scope, and Implementation

1.1 The purpose of the present regulation is to provide a simple, uniform, and exclusive structure for pledges in Kosovo.

1.2 The present regulation provides the exclusive means in Kosovo by which pledges are to be created, become effective against third parties, and are enforced. 

1.3 The present regulation applies to all transactions, regardless of form, intended to create a pledge.  However, the present regulation shall not apply to:

(a) a transfer of a claim for compensation of an employee;

(b) a sale of accounts as part of a sale of the business out of which they arose; and 

(c) a transfer of a right to payment under a mortgage on immovable property.

Section 2
Definitions

For the purpose of the present regulation:

"Account" means a right to payment of a monetary obligation, but excludes letters of credit, deposit accounts, and instruments.

"Attachment", "attached", "attach", or "attaches" means that a pledge becomes enforceable against the pledgor with respect to the collateral.

"Bulk sale of inventory" means any transfer of the major part of the inventory of a business organization or of the inventory held at particular places of business of such business organization.

"Collateral" means any property subject to a pledge.

"Contract right" means the right to any performance or payment under a contract.

"Filing office" means an office established by regulation to perform the filing functions set out in the present regulation.

"Fruits" means any property that is generated by the use of the collateral or as an incident of the existence of the collateral, such as accrued interest, dividends declared but unpaid, uncut timber, unharvested produce and the unborn young of animals.

"Immovable property" means land and property that is inseparable from it, including buildings and installations.

"Instruments" means:

(a) transferable shares in a business enterprise or any document evidencing a transferable beneficial interest any property including, transferable documents, possession of which gives to the holder the right to receive money or goods; and

(b) negotiable instruments.

"Inventory" means:

(a) items of property held for sale or lease or furnished under contracts of service; and

(b) raw materials, work in process, or materials used or consumed in business.

"Lien" means a security interest in property that arises by operation of law, without any agreement by the owner of the property, to secure payment or performance of an obligation.

"Movable property" means any property, tangible or intangible, excluding immovable property.

 "Negative pledge" means a covenant in a pledge agreement that provides that the pledgor will not grant other pledges in the collateral subject to the pledge agreement.

"Perfected Pledge" means that a pledge:

(a) has attached; and, in respect of which,

(b) a notification statement has been filed pursuant to section 16 of the present regulation or the pledge holder is in possession of the collateral.

"Person" means any natural person or legal entity.

"Pledge" means an intentionally created interest in movable property that gives the pledge holder the right to take possession of such property for the purpose of satisfying or attempting to satisfy a secured obligation in accordance with the present regulation.

"Pledge agreement" means a written agreement by which a pledgor grants a pledge holder a pledge. 

"Pledge holder" means a person in whose favor a pledge exists. 

"Pledgor" means a person who conveys to a pledge holder a pledge in collateral.

"Proceeds" means property that is received upon the sale, exchange, collection, or other disposition of collateral.  Proceeds includes insurance payments for loss or damage to the original collateral or its proceeds, and includes cash or other negotiable instruments so long as they remain identifiable.

"Purchase money pledge" means a pledge in which the pledge holder gives value to enable the pledgor to acquire rights in or the use of the collateral.

"Secured obligation" means any obligation secured by a pledge.

Section 3
Collateral

3.1 Any movable property that may legally be transferred pursuant to the applicable law may serve as collateral.

3.2 Unless otherwise provided by law, minerals and hydrocarbons, and their extraction rights may be collateral.

3.3 A pledge may only be enforced to the extent of the rights of the pledgor in the collateral.

3.4 Property that is jointly or commonly owned may be used as collateral only if all co-owners consent to the pledge.

3.5 A person who owns a partial interest in movable property may use that interest as collateral without the consent of the owners of the other partial interests.

3.6 Movable property that comes into possession of the pledgor after creation of the pledge may serve as collateral.  A pledge extends to such collateral if the collateral is identified in the pledge agreement and, as to third parties, if the collateral is identified and described in the notification statement in accordance with section 15 of the present regulation. 

3.7 A pledge also extends to any rights of the pledgor in the collateral that exist pursuant to any contract or agreement.

3.8 Unless the pledge agreement provides otherwise, property that becomes part of or attached to collateral is subject to the pledge. 

3.9 A negative pledge of collateral is enforceable between the pledge holder and any third party if:

(a) the pledge agreement by which the pledgor made the negative pledge is valid;

(b) the pledge is perfected; and

(c) a notification statement containing the notation "re-pledging prohibited by agreement" is filed at least ten (10) days prior to the creation of any subsequent pledge.  

3.10 If the pledge agreement and the notification statement describe the general characteristics of pledged inventory in a manner sufficiently capable of identifying the inventory, the pledge shall extend to all items of the inventory, whether owned by the pledgor at the time of the creation of the pledge or thereafter acquired.  A pledge holder with a pledge in inventory need not create a new pledge in each item of inventory in which the pledgor acquires rights, nor does such pledge holder need to take any action to perfect his pledge in such items of inventory.

3.11 A transaction in which a seller-lessor holds title to property and leases the property to a buyer-lessee is a purchase money pledge if the lease is intended as security.

3.12 A transaction in which a seller of movable property conveys ownership rights to the buyer, but conditions the conveyance on the buyer's payment to the seller of all or substantially all of the purchase price, is a purchase money pledge.

Section 4
Obligations Secured by a Pledge

4.1 Unless so provided in the pledge agreement or by a written waiver, a pledge secures the entire amount of a secured obligation, including unpaid principal, interest, penalties, costs of repossession, maintenance, sale, and any other obligations secured. 

4.2 Unless so provided in the pledge agreement, a pledge does not secure repayment of any future advances of money that have not been advanced or unconditionally committed to be advanced to the pledgor at the time the pledge is created.  For purposes of the present regulation, a pledge holder shall be deemed to have advanced money by having:

(a) provided funds or their equivalent to the pledgor;

(b) exercised some forbearance in favor of the pledgor; or

(c) otherwise given value, whether before or after, to the pledgor in exchange for the pledgor's granting the pledge.

4.3 Notwithstanding the foregoing in sections 4.1 and 4.2, as between the pledge holder and third parties, the amount of a secured obligation may not exceed the sums set forth in the notification statement that relates to that secured obligation.

4.4 A pledge may secure one or more obligations.  Multiple obligations and future obligations that a pledge secures shall be identified in the pledge agreement and notification statement by descriptions by category or class of the obligations secured.  A debt that is created after the date of the pledge agreement will be included in the secured obligation if that debt is identified in the relevant pledge agreement and notification statement.

4.5 For a pledge to be enforceable, the secured obligation must be capable of being expressed in monetary terms at the time the pledge holder takes enforcement action under Chapter 5 of the present regulation.

4.6 A secured obligation may be identified generally or specifically.  It does not need to be in existence or owing to the pledge holder at the time the pledgor grants the pledge. 


Chapter 2
Pledges and Liens

Section 5
General Provisions for Pledges and Liens

5.1 A pledge may be a standard pledge, a possessory pledge, or a purchase money pledge.

5.2 A pledge is valid only if the pledge secures an obligation as set forth in section 4 of the present regulation, and:
(a) the pledgor is the owner of the pledged collateral; or

(b) the pledgor has the legal authority and legal capacity to grant the pledge at the time the pledge is created or deemed to be created pursuant to the present regulation. 

5.3 A standard pledge is created by the pledgor and the pledge holder entering into a pledge agreement.  

5.4 Standard pledges and purchase money pledges attach when:

(a) there is a valid pledge agreement;

(b) the pledge holder has given or advanced money to the pledgor;

(c) the pledgor has rights in the collateral; and

(d) in the case of a possessory pledge, the collateral is in the possession of the pledge holder.

5.5 A lien attaches to property at the time of the lien's creation, or otherwise as provided by the applicable law.

5.6 A lien may be perfected as set forth in section 15.8 of the present regulation, except that a lien resulting from a court judgment or unpaid taxes may be perfected as provided by the applicable law.

5.7 A possessory pledge is created, attaches, and is perfected at the time the pledgor and pledge holder sign the pledge agreement and the collateral has come into the possession of the pledge holder or the pledge holder's designated agent.

5.8 A possessory pledge on collateral in the possession of a bailee may be perfected by the pledge holder's taking possession of:

(a) a negotiable bill of lading issued by the bailee and covering the collateral;

(b) a non-negotiable bill of lading or warehouse receipt issued by the bailee, covering the collateral and made out to the pledge holder; or

(c) any document issued by the bailee describing the collateral and specifically stating that the bailee agrees to hold the goods for the pledge holder.

5.9 A pledge given in violation of a valid negative pledge, if otherwise consistent with the present regulation, is valid as between the pledgor and pledge holder, but ranks below all other valid pledges of the same collateral.

5.10 Subsequent to the creation of a pledge, the pledgor and the pledge holder may agree to add to the secured obligation, to increase the maximum amount of the secured obligation, or to add to the collateral.  Such addition or increase is treated as the creation of a new pledge and is accordingly subject to all of the provisions of the present regulation.

Section 6
The Pledge Agreement

6.1 A pledge agreement may relate to one or more pledges.

6.2 A pledge agreement is invalid unless it is in writing and includes:

(a) the identification of the pledgor, the person owing the secured obligation (if different from the pledgor), and the pledge holder;

(b) a specific or general identification of the secured obligation;

(c) a specific or general description sufficient to reasonably identify the collateral, which may include property to be acquired by the pledgor after the date of the pledge agreement;

(d) a statement that the purpose of the agreement is to create a pledge in favour of the pledge holder;

(e) the signatures by or on behalf of the pledgor and the pledge holder; and

(f) the date of the pledge agreement, which is the date on which the pledge agreement is signed by or on behalf of the pledgor.

6.3 A pledge agreement may include such other matters as the parties may agree, and it may be subsequently amended by the parties.

6.4 If the pledge agreement is signed by a person who acts on behalf of the pledgor, the pledge is valid only if the person who signed the pledge agreement is independent of the pledge holder. 

6.5 A pledge agreement is not required to be notarized unless the parties to the pledge agreement so agree.

Section 7
Rights and Defenses of a Pledgor and a Pledge holder

7.1 A pledge is valid and enforceable only if the secured obligation to which it relates is valid and enforceable.

7.2 In any proceeding in which a pledge holder asserts rights arising out of a pledge, the pledge holder has the burden of proof regarding the creation of the pledge.  When the pledge holder has met that burden, the pledgor or any other party to the proceeding has the burden of proof regarding the termination of the pledge or any defenses.

Section 8
Rights and Obligations Regarding Collateral

8.1 Except as otherwise provided in the present regulation, the parties to a pledge are free to determine their respective rights and obligations.  The remedies of the parties are as set forth in the present regulation.

8.2 Except as otherwise provided in the present regulation, and unless the pledge holder and the pledgor expressly agree in the pledge agreement that the pledge is possessory, the pledgor retains the right to possess and use the collateral and to otherwise enjoy all rights in the collateral. 

8.3 Unless otherwise provided in the pledge agreement, the pledgor's rights in the collateral include the right to combine the collateral with any other thing or right, to apply the collateral in any manufacturing process or other activity, to receive any proceeds except insurance proceeds, and, in pledges in which the collateral is inventory, to sell or use it in the ordinary course of business.  All these rights terminate, however, upon the commencement of an enforcement action pursuant to Chapter 5 of the present regulation.

8.4 The pledgor may not sell, lease, or otherwise dispose of the collateral except as provided in the present regulation or the pledge agreement.  The pledgor is liable to the pledge holder for any damages that result from a breach of this obligation.  However, nothing in this subsection affects the validity of a subsequent pledge given by the pledgor in violation of a negative pledge. 

8.5 Fruits of the collateral remain part of the collateral until they are separated from it, unless the pledge agreement provides otherwise. 

8.6 If a pledgor gives possession of collateral to a pledge holder for purposes of creating a possessory pledge, the pledgor has the right, on reasonable notice to the pledge holder, to inspect the collateral. 

8.7 A pledgor in possession of collateral must refrain from abusive and destructive use of the collateral, must prudently maintain it, and must use it in the manner in which such items of property are ordinarily used; and the pledgor is liable to the pledge holder for any damages that result from a breach of this obligation.  Unless the pledge agreement provides otherwise, the pledge holder has the right, on reasonable notice to the pledgor, to inspect the collateral.


Chapter 3
Rights of Third Parties

Section 9
Priorities

9.1 Unless a pledge agreement provides otherwise, a pledgor may grant more than one pledge in the same collateral. 

9.2 Except as otherwise provided in this section, the priority of different pledges in the same collateral is determined in accordance with the time at which the pledges became perfected.  The first perfected pledge has priority over any subsequently perfected pledge until and unless the first perfected pledge becomes ineffective.  Each subsequent pledge of the same collateral shall rank in the order in which it became perfected.  Unperfected pledges rank below all perfected pledges, and in the order in which they attached to the collateral.

9.3 Perfected liens rank with perfected pledges, and unperfected liens rank with unperfected pledges, with the first in time being senior in each case.

9.4 A possessory pledge of instruments or cash takes priority over any prior pledge.

9.5 A purchase money pledge has priority over any other pledge on the same collateral given by the same pledgor if it is perfected and the purchase money pledge holder notifies the earlier pledge holder by the time the pledgor or his agent obtains possession of the collateral.  The notification must state that the person giving the notification has or expects to take a purchase money pledge on the collateral and must include a specific description of the collateral subject to the purchase money pledge.

9.6 The priority of a new pledge created pursuant to section 5.10 of the present regulation does not relate back to the original pledge.

9.7 The priority of any pledge may be changed at any time by written agreement signed by:

(a) the pledge holder of any other pledge that, as a result of the change, would cease to have the same priority over the re-ranked pledge;

(b) the pledge holder of any other pledge that, as a result of the change, would not acquire priority over the re-ranked pledge; and

(c) any person who has filed notice of a lien in accordance with Chapter 4 of the present regulation, but only if the interest of that person, with respect to the collateral, would be diminished.

Section 10
Transfer of a Secured Obligation

10.1 An agreement by the pledge holder to transfer any secured obligation is an agreement to transfer any collateral securing the secured obligation, unless otherwise provided in the pledge agreement or agreed between the parties to the transfer.

10.2 An agreement to transfer any obligation secured by a possessory pledge is an agreement to transfer any collateral in the possession of the pledge holder only if, at the time of the transfer of the obligation:

(a) the pledge holder transfers possession of the collateral to the new pledge holder or the new pledge holder's agent; or

(b) the transferor agrees to hold the collateral on behalf of the new pledge holder.

10.3 The pledgor may assert against any new transferee-pledge holder any defenses available against the transferor-pledge holder.

10.4 If the pledge holder transfers only part of a secured obligation, the transferee-pledge holder becomes entitled to the pledge and to any transferred rights under the pledge agreement jointly with the transferor-pledge holder up to the amount of the secured obligation that was transferred.

10.5 If a transfer of a secured obligation occurs by operation of law, any pledge given with regard to that obligation is also transferred.

Section 11
Pledge of an Account

11.1 In a pledge in which the collateral is an account, the person owing the pledged debt may satisfy it in any manner agreed with the pledgor unless the pledge holder notifies that person that the pledge exists.  In that event:

(a) the account may only be satisfied by payment to the pledge holder or to such person as the pledge holder designates unless the pledge holder otherwise agrees; and

(b) the pledge holder may seek to collect directly from the person owing the pledged debt.

11.2 A notice given pursuant to section 11.1 shall:

(a) be in writing;

(b) identify the pledgor; 

(c) describe the account in a manner that enables the person owing the pledged debt to identify it;

(d) include instructions as to whom the account is to be paid; and

(e) be hand-delivered to the person who owes the account by a person designated by the filing office, with such hand-delivery evidenced by a written confirmation signed by the person who made the delivery.

11.3 When an account is satisfied or otherwise discharged, the pledge is terminated.

11.4 A pledge of an account can only be perfected by filing a notification statement.

Section 12
Pledges of Cash and Contractual Obligations

12.1 If the collateral pledged is a contract right other than a money debt, the person owing the contractual obligation may satisfy it in the manner agreed with the pledgor, unless the person owing the contractual obligation has received notice from the pledge holder pursuant to Chapter 5 of the present regulation regarding enforcement, and the pledge holder exercises the pledge holder's rights pursuant to such Chapter.

12.2 A pledge of contract rights may only be perfected by filing a notification statement.

12.3 A pledge of cash may only be perfected by possession.

Section 13
Acquisition of Collateral

13.1 A person who acquires title to collateral does so subject to any pledge of such collateral.

13.2 Notwithstanding section 13.1, a person acquires title to collateral free of any pledge where:

(a) the pledgor transfers title by a sale in the ordinary course of the pledgor's business;

(b) the pledgor transfers collateral with the written consent of all pledge holders having a pledge in the collateral; or

(c) the collateral that is transferred is:

(i) a share or a debt instrument quoted on a recognized market;

(ii) a negotiable instrument or negotiable document; or

(iii) cash.

Section 14
Ordinary Course of Business Exception

14.1 A buyer of inventory in the ordinary course of business of the seller acquires title free of any pledge, even if the pledge is perfected and even if the buyer had knowledge of the pledge.

14.2 A sale is in the ordinary course of business if the purchase is from a seller who is regularly engaged in selling property of the type that the buyer purchases and both the buyer and the seller are unrelated and act in good faith.  No bulk sale of inventory is a sale in the ordinary course of business. 

14.3 A buyer and a seller are unrelated if their interests are independent of one another, if the price that the buyer pays to the seller is fair and reasonable under the circumstances, and if the primary purpose of their transaction is not to defraud, delay, or hinder a pledge holder's or lien creditor's efforts to collect an obligation.

14.4  Any agreement between the pledgor and the pledge holder that purports to restrict a buyer's rights is ineffective as to any buyer.


Chapter 4
Filing Office and Public Notice of Pledges

Section 15
Filing of the Notification Statement

15.1 To perfect a standard pledge a notification statement must be filed. Filing is accomplished by presenting to the filing office a notification statement that includes:

(a) sufficient identification of the pledgor, the person owing the secured obligation (if not the pledgor), and the pledge holder;

(b) the specific or general identification of the secured obligation;

(c) the maximum amount of the secured debt expressed in money terms;

(d) a specific or general identification of the collateral;

(e) a signature by or on behalf of the pledgor; and

(f) the date of the pledge agreement.

15.2 If a possessory pledge is converted to a standard pledge and a notification statement is presented for filing, the notification statement shall also contain:

(a) a statement that the possessory pledge is being converted to a standard pledge; and

(b) the date the pledge holder first acquired possession of the collateral.

15.3 In a transaction in which there is more than one pledgor, a separate notification statement shall be filed for each pledgor.

15.4 If a notification statement is signed by a person acting on behalf of the pledgor, its filing is effective only if the person who signed is independent of the pledge holder.

15.5 A notification statement that otherwise complies with section 15.1 of the present regulation is effective when signed by the pledge holder instead of the pledgor if it is filed to perfect a security interest in:

(a) collateral already subject to a pledge in another jurisdiction when such collateral is brought into Kosovo or when the pledgor's location is moved to Kosovo (such a notification statement must state that the collateral was brought into Kosovo or that the pledgor's location has moved to Kosovo);

(b) collateral as to which the notification statement has lapsed; or

(c) collateral acquired after a change of name, identity, or corporate structure of the pledgor.

15.6 A notification statement may be amended by filing a writing signed by both the pledgor and the pledge holder.  An amendment does not extend the period of effectiveness of the notification statement.  If an amendment adds collateral, it is effective as to the added collateral only as of the filing date of the amendment.  An amendment shall appear on a notification statement form, and shall include a description of the amendment, a statement that it is giving notice of an amendment, and a statement of the document number of the original notification statement.  The filing office shall cause amendments to be filed upon:

(a) presentation of the amendment document;

(b) payment of the appropriate fee; and

(c) verification that the amendment document contains a document number that refers to a filed notification statement.

15.7 A notification statement substantially complying with the requirements of the present regulation is effective even though it contains minor errors that do not have an important impact.

15.8 A lien may be perfected by filing a notification statement that includes:

(a) sufficient identification of the lien debtor and the lien creditor;

(b) a description of the lien;

(c) the amount of the lien;

(d) a specific or general identification of the property to which the lien has attached;

(e) the date the lien was created; and

(f) the signature of the lien creditor or authorized official.

15.9 A notification statement sufficiently identifies a pledgor or pledge holder if it includes:

(a) a registered individual, partnership, or corporate name, or, in the case of an individual not engaged in business, the name, address, and corresponding number as they appear on a residency card, passport, driver's license, or other identification document; and

(b) a street address, telephone number, or electronic mail address.

15.10 If a pledgor undergoes a name change, a change in identity, or a change in business structure such that a filed notification statement becomes seriously misleading, the filing is not effective to perfect a pledge in collateral acquired by the pledgor more than four (4) months after the change, unless a new notification statement is filed before the expiration of that time.

Section 16
Duration of Filing; Organization of Filing System

16.1 All filings with the filing office shall be deemed to be filed when presented to the filing office in proper form with payment of the prescribed fee.

16.2 A notification statement is effective for three (3) years from the date of filing.  Upon lapse, the pledge becomes unperfected unless it is perfected by possession. 

16.3 A pledge holder may file a continuation notice within three (3) months prior to expiration.  A continuation notice must be signed by the pledge holder, must identify by document number the original notification statement to which it applies, and must state that the original notification statement is still effective.  If a continuation notice is signed by a person other than the prior pledge holder, it must be accompanied by a statement signed by the prior pledge holder showing assignment of the pledge.  Successive continuation notices may be filed in the same manner.  Upon timely filing of a continuation notice, the original notification statement to which it applies shall be effective for three (3) years from the last date for which the filing was effective.

16.4 The filing office shall:

(a) mark each filed document with a consecutive document number and with the date and hour of filing;

(b) hold each document or its electronic image for public inspection, arranged by document number;

(c) index each document by name of the pledgor, noting in the index the document number and the address of the pledgor; and

(d) make the index available for public inspection.

16.5 The filing system and the index shall be centralized and maintained in only one place in Kosovo, but electronic access permitting filing and inspection from remote locations may also be provided. 

Section 17
Termination of a Pledge

17.1 If a notification statement is filed, the pledge holder shall, within one month after there is no outstanding secured obligation and no commitment by the pledge holder to make advances, incur obligations, or otherwise give value, file a termination statement which contains the pledge holder's signature and a statement that the pledge holder no longer claims a security interest by way of the notification statement, which shall be identified by document number.  A termination statement signed by a person other than the pledge holder shall be accompanied by a written statement of assignment signed by the pledge holder before it may be filed. 

17.2 A pledge holder who fails to file a termination statement as required by section 17.1 shall be liable to the pledgor for any damages caused to the pledgor as a result of such failure. 

17.3 The filing office shall assign a document number to a termination statement and note its filing in the index.  The filing office shall ensure that all references to the notification statement, as well as the notification statement itself, also include a reference to the termination statement.

17.4 A pledge shall terminate when:

(a) the pledgor and the pledge holder so agree;

(b) the secured obligation is satisfied or otherwise ceases to exist;

(c) the collateral (including any payable insurance proceeds) ceases to exist;

(d) the collateral is changed or incorporated with another thing or right such that it ceases to exist in identifiable or separable form;

(e) the collateral becomes part of another thing or right such that the collateral and the other thing or right are transferable as a single item;

(f) the collateral becomes owned by the pledge holder;

(g) in the case of a possessory pledge, the pledge holder's possession of the collateral ceases;

(h) the obligation secured by a pledge is transferred, but the transfer does not extend to the pledge;

(i) a third party acquires title to the collateral pursuant to sections 13.2 or 14 of the present regulation; or

(j) a third party acquires title to the collateral after its repossession (or voluntary surrender) and disposition by the pledge holder pursuant to section 20 of the present regulation.

17.5 Unless otherwise agreed, the pledge holder shall return the collateral to the pledgor upon termination of a possessory pledge.

17.6 If the pledge holder and the pledgor agree to the pledge holder's release of certain collateral, the pledge holder shall file a termination statement that is clearly marked "partial termination only."  Such a termination statement is sufficient if it describes the collateral and includes the name and address of the pledge holder and pledgor and the document number of the notification statement that relates to the pledged interest in that collateral.  Sections 17.1, 17.2, and 17.3 apply to such termination statements.

Section 18
Filing Office

18.1 A filing office shall be established by regulation.

18.2 The filing office shall ensure that the index and the documents in the filing system are available for public inspection for no fewer than five (5) hours on each day that governmental units are authorized to be open for business in Kosovo. 

18.3 The Administrative Department within which the filing office is located shall provide by Administrative Instruction a fee schedule for filings and any additional services provided by the filing office.


Chapter 5
Default and Enforcement

Section 19
Rights Upon Default

19.1 A default occurs if there is a failure to perform the secured obligation or if there is a breach of the terms of the pledge agreement by the pledgor or the person owing the secured obligation. 

19.2 Upon default, the pledge holder may take possession of the collateral through:

(a) judicial action;

(b) self-help, if this can be done without a breach of the peace; or

(c) administratively, pursuant to section 19.6 of the present regulation.

19.3 If the pledge holder proceeds by judicial action, he shall file an application with the court with appropriate jurisdiction requesting an order, ex parte and without notice to the pledgor or any other person, authorizing the collateral to be seized and delivered to the pledge holder pursuant to judicial process.  Such application shall be adjudicated by the court no later than three (3) business days after the date of filing.

19.4 The pledgor, the person owing the secured obligation, or any guarantor or other secondary obligor may file a motion to determine whether the pledge is invalid in whole or in part.  The court shall then determine whether to revoke or change any order issued pursuant to section 19.3, and shall determine the pledge holder's liability for any damages caused by the order to seize and deliver the collateral.

19.5 After disposition of the collateral by the pledge holder, the court may also, at the request of the pledge holder, the person owing the secured obligation, or any guarantor or other secondary obligor, determine the amount owed under the secured obligation after credit is given for the proceeds of the disposition of the collateral, and render judgment on the amount determined.

19.6 A pledge holder of a perfected pledge in default may appoint a person designated by the filing office to obtain possession of the collateral where:

(a) the pledge holder does not have the right to enter upon the site where the collateral is located;

(b) the pledge holder's possession rights are interfered with by the pledgor or any other person; or

(c) there may be a breach of the peace.

19.7 Upon default, a pledge holder may sell, lease, or otherwise dispose of the collateral.  The proceeds of any such disposition shall be applied in the following order:

(a) to the reasonable expenses incurred by the pledge holder for taking possession of the collateral, holding it for sale, and other reasonable expenses related to the sale;

(b) to the satisfaction of the secured obligation;

(c) to the satisfaction of any other junior pledge holder of the same collateral, if written demand is made at any time before the disposition takes place; and

(d) the remainder shall be delivered to the pledgor.

19.8 Unless otherwise agreed, the pledgor remains liable for any deficiency.

19.9 Disposition of the collateral may be by public sale or otherwise.  The method, manner, time, place, and terms of the disposition must be commercially reasonable. 

19.10 The pledge holder shall give the pledgor at least fourteen (14) days notice of the time and place of the sale.  The pledge holder shall also give such notice to any other holder of a pledge on the same collateral who sends a written notice of an interest in the collateral prior to notification of the pledgor.

19.11 The pledge holder may not purchase the collateral except at a public sale, at a private sale if the collateral is sold in a recognized market, or when there are widely distributed standard prices for the collateral. 

19.12 A pledge holder may offer to accept the collateral in full or partial satisfaction of the secured obligation.  This offer becomes binding if:

(a) the pledgor agrees in writing; and

(b) the person owing the secured obligation or any guarantor or other secondary obligor does not object in writing within fourteen (14) days after the receipt of the offer.

19.13 The pledgor, the person owing the secured obligation, or any guarantor or other secondary obligor may redeem the collateral by fulfilling all of the obligations secured by the collateral as well as the expenses set forth in section 19.7(a) of the present regulation.  Such redemption may occur at any time prior to the disposition of the collateral by the pledge holder, or before the pledge holder accepts the collateral in full or partial satisfaction of the secured obligation. 

19.14 If the pledge holder does not comply with the provisions of the present Chapter, the pledge holder may be enjoined or restrained by an appropriate court upon the application of the pledgor or any person entitled to notification (including any person whose pledge in the same collateral has been made known to the pledge holder prior to the disposition).  If the disposition has already occurred, the pledgor or any person entitled to notification has a right to recover from the pledge holder any loss caused by the failure to comply with the provisions of the present Chapter.


Chapter 6
Miscellaneous Provisions

Section 20
Judicial Review

20.1 In any proceeding in a court of competent jurisdiction against the filing office (the "defendant") or any of its officials, employees, or agents for any action taken under the present regulation, the sole issue in question before the court in determining whether a defendant acted unlawfully, wrongfully, or negligently shall be whether the defendant clearly exceeded authority or acted in an arbitrary or capricious manner in light of all the facts and circumstances, and the provisions and intent of the present regulation.

20.2 No current or former official, employee, or agent of the filing office shall be personally liable for damages or otherwise for acts or omissions performed in good faith.   

Section 21
Transitional Provision

Any liens, pledges, security interests, or charges in existence on the effective date of the present regulation shall only remain valid as to third parties if the creditor files a notification statement within sixty (60) days after the filing office is established and able to accept filings.  The notification statement filed under this section shall not require the debtor's cooperation or signature.

Section 22
Implementation

The Special Representative of the Secretary-General may issue administrative directions for the implementation of the present regulation.

Section 23
Applicable Law

The present regulation shall supersede any provision in the applicable law which is inconsistent with it.
                                                
Section 24
Entry into Force

The present regulation shall enter into force on 7 February 2001.

 

Hans Haekkerup
Special Representative of the Secretary-General